Antonin Scalia: No right to secede

The Washington Post ^ | 17 Feb 2010 | Robert Barnes

[Palter]

Is there a right to secede from the Union, or did the Civil War settle that?

Certain Tea Partiers have raised the possibility of getting out while the getting's good, setting off a round of debate on legal blogs. The more cerebral theorists at the smart legal blog The Volokh Conspiracy question whether such a right exists.

Enter a New York personal injury lawyer, and Supreme Court Justice Antonin Scalia.

The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 -- he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court -- and Scalia responded. His answer was no:

"I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay."

[ctdonath2]

Governments govern only by the consent of the governed.

“By right of conquest” is just a matter of persuading the governed to consent.
Revolution is just a matter of the governed denying their consent.
War is just the process of determining consent (or lack thereof).

[lonevoice]

The lawyer, Eric Turkewitz, says his brother Dan, a screenwriter, put just such a question to all of the Supreme Court justices in 2006 -- he was working on an idea about Maine leaving the U.S.and a big showdown at the Supreme Court

I hope Dan wasn't deterred from writing the screenplay. Sounds like an interesting movie, and the comments on this thread suggest it's particularly relevant at this time.

[GraceG]

With the socialists in power it would make more sens to appeal tot he U.N. on this issue than the Legislation in Washington, sadly....

Maybe something more akin to the splitting of the Czech and Slovakia compared to the civil war...

[andy58-in-nh]

As a matter of law, I also strongly suspect that Scalia is correct. I think he is likewise due a good deal of deference on the subject given his reputation for intellectual rigor.

However, there is a difference between right and law, as our Declaration of Independence makes plain in the context of providing a logical and practical justification for the American revolt against British rule:

"...governments are instituted among men, deriving their just powers from the consent of the governed." (But) "whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government..."

At the same time: "prudence, indeed, will dictate that governments long established should not be changed for light and transient causes..."

"But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."

That sounds very much to me like an expression of natural law, but not a deterministic one in the sense that the validity of those propositions depend solely upon their successful achievement.

Rather, the words above are intended to express an objective standard for the maintenance of self-governance under duress, which may be summarized in this way:

People have a natural right to be free and choose their own form of political organization, significant alterations to which ought not be made easily or due to temporary circumstances. But if their government demonstrates a pattern of behavior for which the sole rational explanation is a desire to impose tyranny, the people then have both the right and a duty to act to establish a new government.

By the standard expressed above, in both original and derivative forms, I think we have as yet fallen far short of the standard for revolution. The right of states as sovereign entities in our Federal Republic to secede from the Federal government is a much broader matter. I think the standard ought to be something higher than a majority vote of state legislatures and for something truly immutable in the absence of withdrawal from the Union. After all, it really didn't work out too well the last time.

[Still Thinking]

You can’t just let a state leave — that state has had federal protection for years, meaning all of our tax dollars have been dedicated to the aid of that state, and also a lot of tax dollars have gone into things built in the state, and to people of hte state, based on our shared union.

That argument is invalid. The citizens of that state paid federal taxes during the years in which the feds were building stuff in their state. If they're no longer to be one of the United States, both their tax payments and federal projects will cease, so 100 years after secession, there never will have been any period with projects and no taxpaying, nor with taxpaying and no projects.

It's not reasonable to say that to secede, a state must repay all monies ever received from the federal government. A portion of THEIR money was used to fund projects in OTHER states too. If they were somehow responsible to pay back all that money, even though they were paying taxes during that period, they would also be entitled to a refund of the money they paid out that built stuff in other states, yet no one ever seems to want to think about that.

[Non-Sequitur]

Yes, but the Constitution specifically required the consent of Virginia. At least if Virginia was still a state.

And as I pointed out, the body of the Virginia legislature that remained loyal to the Union and which was recognized by the Congress as the legitimate legislature of Virginia did vote to partition the state. The letter of the law was followed if, perhaps, not the spirit.

FWIW Lincoln had his doubts on the legality of West Virginia's admission but the president has no constitutional role in admitting a state so there was nothing he could do about it.

[Non-Sequitur]

Not really,, ever hear of the Supreme Court of the Soviet Union? A Socialist takeover here would almost certainly leave familiar things like the Supreme court intact as window dressing.

Or not. The Supreme Court of the Soviet Union was created by the Soviet Union - there was no corresponding institution under the Tsars. The U.S. Supreme Court has a 220 year history of judicial independence which would not sit well under a totalitarian form of government.

[Still Thinking]

The U.S. Supreme Court has a 220 year history of judicial independence which would not sit well under a totalitarian form of government.

They do? Would you mind dropping them an email on this? I think they may have forgotten.

[manc]

true

do not forget that those back in that time were called traitors by the majority because they dared to stand against a Govt who was taking advantage of them.

[kalee]

My grandfather who died 10 years ago at age 100 said his grandmother talked about Union soldiers who were at the voting places and turned away men who were not going to vote secession from VA. I didn’t think that could really have happened but former governor Caperton says basically the same thing in a history of WV that he authored.

[manc]

nail on head

say TX or my state FL said to hell with DC we’re going it alone and then GA, TN,SC,NC, OK, LA,UT,AK, say we’re joining.

Well we know those states together would be bale to set up their own country as they have all the energy, airports, infrastructure, cities and food they need .

Ofcourse states like MA,NY,VT,ME,DE,MD,IL, would not be happy so what happens now?

Is bozo going to invade like Lincoln did and kill hundreds of thousands, rape, steal from people to make them stay in a country they do not want to?

The elitists would be crying and moaning but today most of them would not have balls to fight.
The war would be very different today too

[manc]

thanks for the ping and that is some great info, shame it will be missed and ignored by some

[Non-Sequitur]

My grandfather who died 10 years ago at age 100 said his grandmother talked about Union soldiers who were at the voting places and turned away men who were not going to vote secession from VA. I didn’t think that could really have happened but former governor Caperton says basically the same thing in a history of WV that he authored.

When Virginia held its secession vote in May 1861, the people in what became West Virginia voted overwhelmingly against secession by a 6:1 margin. There is no doubt that the overwhelming majority of the people in West Virginia were unionists.

[cowboyway]

But even that case left open the option of secession with the consent of the other states

You left out part (as usual):

"except through revolution or through consent of the States"

[wizard1961]

“Hey stupid at the supreme court! ... Like it or not , pig.”

I am also angry... but how do we convince voters to join us in restoring the Constitution?

[Non-Sequitur]

"except through revolution or through consent of the States"

Yeah that revolution part really worked for you, didn't it?

[MrRobertPlant2009]

It’s possible that this happened in pockets, but the 55 counties in Western Virginia were largely against secession, immediately called a confernce in Clarksburg to discuss severing its ties with Richmond, within two months had declared secession void, and it had declared an independent government by June 1861. The statewide vote for creating a new state was 18:1 in favor. By 1862, it was on its way to statehood.

Granted, this was probably all unconstitutional, but there was never any reason for West Virginia to remain part of Virginia.

Signed,
Knight of the Golden Horseshoe, 1987.

[mlo]

"And as I pointed out, the body of the Virginia legislature that remained loyal to the Union and which was recognized by the Congress as the legitimate legislature of Virginia did vote to partition the state. The letter of the law was followed if, perhaps, not the spirit."

Oh, I'm sure they thought up some justification for doing what they wanted to do anyway. But that doesn't make any logical sense. The same body cannot be both the original state, and the portion that wants to break off.

[mlo]

"There is no doubt that the overwhelming majority of the people in West Virginia were unionists."

True. If I recall, they wanted to secede from Virginia even before the Civil War, but Virginia refused.

[cowboyway]

Yeah that revolution part really worked for you, didn't it?

Your comment it totally irrelevant to this thread and is simply just more of your 'trolling', which is the reason why I would ban your ass in a second if I were a mod.